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Dubs: Gaither made a deal

A former defense attorney for Elisa Baker says that a deal was struck to keep her client from facing a first-degree murder charge in the death of her 10-year-old stepdaughter despite assertions from the district attorney that no bargain was made in exchange for Baker’s assistance in locating the remains of Zahra Baker.
Lisa Dubs spoke out Thursday regarding an agreement she contends she brokered with the District Attorney’s Office on Elisa’s behalf.
“I negotiated an agreement with the DA for Elisa Baker to cooperate with law enforcement, particularly in finding remains of Zahra,” Dubs said during a phone interview with the News-Topic Thursday. “She continued to cooperate through the terms of the agreement.”
Dubs did not elaborate on the complete terms of the deal, though she indicated it required her to be present and continue to advise Elisa as she dealt with law enforcement and the prosecution. The deal was struck during a 24-hour period after one of Dubs’ investigators recovered a piece of evidence in the case, though she did not divulge what that evidence was.
When contacted by phone Thursday afternoon, 25th Prosecutorial District Attorney Jay Gaither declined to comment about the agreement or statements concerning it made by Dubs, though he has maintained throughout the investigation that there was no agreement between his office and the defense for Elisa.
Dubs was assigned to the case as provisional counsel by the North Carolina Capital Defender’s Office Oct. 18, 2010, nine days after Zahra was reported missing by her father Adam and eight days after Elisa’s arrest for obstruction of justice stemming from a fake ransom note she admitted to writing concerning the girl’s disappearance. Dubs indicated that her assignment came as a result of Gaither’s consideration of the case as a possible capital offense.
Elisa gave law enforcement information that led to the recovery of Zahra’s remains along Christie Road just outside Hudson and close to a creek near the intersection of Dudley Shoals Road and Burns Road. Remains found included the left humerus and portions of the torso and pelvic areas of the little girl as well as her prosthetic left leg.
Word of a deal between the defense and DA’s Office began to circulate Dec. 3, 2010, when television stations reported that an agreement was in place to keep Elisa from facing either the death penalty or life in prison if ever tried for the death of Zahra. Gaither acknowledged Dec. 4, 2010, that he was aware of such reports, but he declined to comment specifically on them.
“I’m not going to comment on assertions made by unnamed sources while we are in the process of a criminal investigation,” he said at the time. “If the investigation of the case continues to lead us where we need to go, all things will fall into place.”
In an e-mailed statement three days later, Gaither addressed multiple media reports regarding a plea agreement, indicating that the death penalty and life in prison remained viable sentences if Elisa was brought to trial for and convicted of Zahra’s death.
Gaither cited Rule 3.6 of the N.C. Bar in the e-mail, which asserts that “a prosecutor must refrain from making pretrial statements that have a substantial likelihood of materially prejudicing an adjudicative proceeding. However, when false or misleading statements are made that publicly cause prejudice to the process, the prosecutor has the responsibility of responding publicly to minimize the adverse impact.”
The e-mail read, “Recent news reports incorrectly stated that the prosecutor has removed first-degree and capital first-degree murder as possible charges against Elisa Baker in connection with the death of Zahra Baker. Elisa Baker maintains her innocence in connection with the death of Zahra Baker, and she has cooperated with law enforcement. If the investigation determines that Elisa Baker is not involved in the death of Zahra Baker, she will not be charged. If, on the other hand, there is sufficient evidence to prove that Elisa Baker was involved in the death of Zahra Baker, the state is under no obligation to limit charges.”
Capital Defender Robert Hurley removed Dubs as provisional counsel for Elisa Dec. 1, 2010, but she opted to continue assisting her client for free.
“I felt it necessary to stay on, even though it was pro bono work, until we reached a resolution on the agreement,” she said Thursday. “I stayed on until I felt comfortable the terms of the agreement were met.”
Elisa was indicted on a charge of second-degree murder by the Catawba County Grand Jury Monday, and Gaither announced the indictment during a press conference at Hickory Police Department that afternoon.
Since Monday’s announcement, Gaither has been criticized by the public for the second-degree charge, with most people thinking that it is not stiff enough for the alleged crime Elisa is accused of committing.
“There’s more transparency about this case than any I can remember,” Gaither said. “There’s not a single legal expert I know that disagrees with the charge of second-degree murder. It’s been pretty offensive to me to have to deal with this kind of scrutiny.”
He also indicated that the charges could change if the investigation turned up something new.
“There’s nothing that precludes the state from pursuing first-degree murder charges through a superceding indictment if the investigation were to turn up additional evidence that supports the charge of first-degree murder,” he told the News-Topic.
Dubs said she could not understand why Gaither would not talk about the agreement.
“I commend him for making the agreement to get her cooperation; I don’t understand why he won’t talk about it,” Dubs said. “They were at a dead end. Because of (Elisa’s) cooperation, they were able to put to rest what happened to Zahra. I think it was a good agreement. They were able to bring Zahra home like the community asked him to do. He did not give up much, but he got a lot in return.”
Elisa is the only person charged with any crime related to Zahra’s disappearance and death. Gaither even said during the press conference that “the state has no credible evidence to suggest anyone other than Elisa Baker is involved with the murder of Zahra Clare Baker.”
Dubs, like many members of the public, is not so sure.
“I do not know why they have not charged Adam Baker with something,” she said.
Adam has said all along he had nothing to do with his daughter’s disappearance or death, and reiterated that during an interview with Charlotte television station WBTV earlier this week.
“I had no involvement with Zahra’s death or dismemberment,” Adam said.
Dubs said she is satisfied with the work she put into the case, allowing Elisa to avoid facing the death penalty, and she acknowledged that any further involvement on her part would come into play only if the agreement between the DA’s Office and Elisa becomes an issue.
Scott Reilly has been appointed as Elisa’s attorney for the second-degree murder charge. She remains jailed in the Catawba County Detention Center under a total bond of $307,700. Her next scheduled court appearance is during the April 4 administrative session of Catawba County Superior Court.